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Synopsis

The High Court of Jammu and Kashmir and Ladakh has dismissed a habeas corpus petition challenging the preventive detention of a man accused of smuggling cattle including bovine animals such as cows and calves. The court upheld the preventive detention order issued under the Jammu and Kashmir Public Safety Act (PSA), 1978, emphasising that such activities disturb public order and hurt religious sentiments.

A Single judge bench comprising Justice Moksha Khajuria Kazmi, observed : “The bovine smuggling besides being a criminal offence has the potential of creating a feeling of discontent and indignation amongst a particular community.”

The court made the observation while hearing the case pertaining to the detenue, Shakeel Mohd, a resident of Jammu, who was accused of habitual involvement in cattle smuggling and other violent criminal offences, including rioting and stabbing. Acting on an order by the District Magistrate, Jammu, Shakeel was detained under the preventive provisions of the Public Safety Act in March 2024. Shakeel’s mother, Bano Bibi, filed a petition challenging the detention, alleging procedural lapses and questioning the necessity of preventive detention. It was argued that the alleged offences could have been addressed under ordinary criminal law and that the detention violated constitutional safeguards. It was also contended that the detention order was in English language, however, the detenue only understood Hindi and the said order was not read over and explained to the detenue in Hindi language which is a prerequisite for maintainability of the detention order.

Opposing the petition, the respondents (UT of J&K), argued that the detenue was a hardcore criminal, engaged in criminal and anti- social activities that were pre-judicial to the maintenance of public order. It was further alleged that it was imperative to detain him as “Repeated offences committed by the detenue, who inflict major harm and injury on public, is not only prejudicial to the public safety and public order but also has the potential to sky-ball and impact overall security of the state.” It was also highlighted that at the time of execution of detention order, the executing officer has provided the relevant documents to the detenue and also explained him the contents of the detention order in Hindi/ Dogri, a language understood by the detenue.

Considering the contentions of both the parties, the court found that the detention order adhered to all procedural safeguards. It held that the detaining authority had explained the grounds in Hindi/Dogri and provided all relevant documents to the detenue, enabling him to make an effective representation.

Drawing from the Supreme Court’s landmark ruling in Arun Ghosh v. State of West Bengal (1970), the court distinguished between “law and order” and “public order.”  The court noted: “Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished, from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order.”

Referring to R. Kalavathi v. State of Tamil Nadu (2006), the court reiterated that even a single act capable of disrupting public tranquility can justify preventive detention. It emphasised that Shakeel’s alleged activities, including cattle smuggling—a practice viewed as deeply offensive by certain communities—had the potential to disturb communal harmony. “The bovine animals include cows and calves and their illegal smuggling is always viewed by one community only for the purpose of slaughter and, therefore, there is a feeling amongst the people belonging to such community, that the activity hurts their religious sentiments,” the court observed.

“The activities of the detenue, against whom number of FIRs stand registered for illegal smuggling of bovine animals, have the potential to disturb even tempo of current life of the community and not only poses law and order problem but would also be a threat to the maintenance of public order in the area,” the court also stated.

As a result, the court concluded that “there is no perversity in the impugned detention order” and dismissed the petition.

 

Cause Title: Shakeel Mohd v. Union Territory of J&K [HCP No. 55/2024]

Appearances: Advocate Gagan Oswal appeared for the petitioner, while Additional Advocate General Rajesh Thappa represented the Jammu and Kashmir government.